State v. DesLaurierState v. DesLaurier
- Reporters:
- , ,
- Before:
- Connell
The defendant appeals from his conviction of assault in the second degree with a motor vehicle in violation of
The genesis of this case is a one car automobile accident in which the defendant and his passenger, Richard Hinds, were both injured and transported by ambulance to a hospital. Much of the evidence and some of the defendant’s claims arise out of the defendant’s conduct at the accident scene and the hospital. Necessary factual details are included in the analysis of individual claims.
I
Amended Information
On November 6, 1990, the defendant pleaded not guilty to charges of reckless driving and operating a motor vehicle while under the influence of alcohol, and elected a jury trial. The voir dire jury selection process had begun and three jurors had been chosen by the time court opened the following morning. The state then informed the court that it had just learned that the defendant’s passenger had sustained injuries in the accident causing paraplegia.3 Consequently, the state filed *556a substitute information charging the defendant with assault in the second degree with a motor vehicle in violation of
On December 4,1990, the defendant moved to strike the substitute information on the grounds that it was filed after the trial had started and, thus, violated
The determination of this issue depends on whether
We begin our analysis by noting what we are not deciding. First, this is not a question of whether double jeopardy attached when the first jury voir dire began. The United States Supreme Court has firmly established that double jeopardy attaches when the jury is empaneled and sworn;6 Downum v. United States, 372 U.S. 734, 83 S. Ct. 1033, 10 L. Ed. 2d 100 (1963); and this point of attachment is part of the fifth amendment constitutional guarantee. Crist v. Bretz, 437 U.S. 28, 38-39, 98 S. Ct. 2156, 57 L. Ed. 2d 24 (1977). This provision of the fifth amendment is applicable to the states through the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 787, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); see State v. Van Sant, 198 Conn. 369, 376, 503 A.2d 557 (1986); State v. Roy, 182 Conn. 382, 385, 438 A.2d 128 (1980). Moreover, the point at which jeopardy attaches is not the result of arbitrary line drawing, such that it may be moved a few steps forward or backward without constitutional significance, but is fixed as an integral part of the constitutional guarantee.7 Crist v. Bretz, supra, 37-38.
Second, we are not concerned with a claim that the state, in the exercise of due diligence, should have known of the seriousness of the passenger’s injuries in a more timely fashion. Lack of due diligence and perhaps a resultant speedy trial denial; see Doggett v. United States, U.S. , 112 S. Ct. 686, 120 L. Ed. 2d 520 (1992); were not raised by the defendant and, therefore, are not before us.
*558Accordingly, we must decide this issue solely by construing the rules of practice. In State v. Cole, 8 Conn. App. 545, 550-52, 513 A.2d 752 (1986), this court analyzed
“Without proper notice of the precise charges against him, a defendant is hampered in the effective questioning of the veniremen to discover and evaluate any bias or prejudice which they may harbor as to the particular crime or crimes involved. It would be difficult to ask appropriate questions in an effort to discover such possible bias or prejudice unless the defendant has notice of the particular charges against him.” Id., 551. Consequently, the Cole court declared that for purposes of §§ 623 and 624 a criminal trial begins with the voir dire of prospective jurors. Id., 552.
Cole would be applicable to the present case if the defendant had been deprived of the opportunity to voir dire the jurors before whom he was tried on all of the charges against him. That is not the situation here, *559however. This case is more nearly analogous to State v. Parker, 25 Conn. App. 619, 595 A.2d 939 (1991), which also involved the issue of whether § 623 or § 624 applied. In Parker, the trial court declared a mistrial after the jury was unable to reach a verdict on a charge of intentional assault in violation of
Parker moved to strike the substitute information arguing “that once the first trial began, any subsequent amendments to the information occurred ‘[ajfter commencement of the trial,’ notwithstanding the intervening mistrial.” Id., 622. This court rejected Parker’s argument concluding “that the provisions of § 623 apply where the state seeks to amend the information or file a substitute information after a mistrial and before a retrial.” Id. “Upon mistrial, the criminal prosecution is returned to the pretrial stage. The defendant after the mistrial, therefore, was in the position of one who awaits the commencement of trial. This conclusion does not undermine the due process concerns of §§ 623 and 624 to protect a defendant’s right to fair and adequate notice of the charges against him so as to afford him an opportunity to prepare an adequate defense.” (Internal quotation marks omitted.) Id.
For purposes of this case, aborting the partially completed voir dire was the functional equivalent of a mistrial. The case was returned to the pretrial stage and the defendant was given the opportunity to file pretrial motions addressing the new substitute information.
Just as an entirely new jury array was required after the mistrial in Parker, an entirely new array was furnished here. The original three jurors had been dis*560missed and the partial voir dire became merely part of the history of the case. The trial culminating in the defendant’s conviction commenced with the voir dire of the jury that rendered the verdict. Accordingly, the pretrial rule of § 623 applied and the trial court properly denied the defendant’s motion to strike the substitute information.
II
Competency Examination
On January 18,1991, the defendant’s counsel made a motion for examination of the defendant’s competency under
The trial court conducted a comprehensive, searching examination through questions addressed directly to the defendant. Following this canvass, the trial court *561found that the defendant understood the charges against him and was able to proceed with the case.9
It is axiomatic that if a person is not competent to stand trial, his conviction violates the due process guarantee of the fourteenth amendment of the constitution of the United States and article first, § 8, of the constitution of Connecticut. Gold v. Warden, 222 Conn. 312, 313 n.3, 610 A.2d 1153 (1992); State v. Johnson, 22 Conn. App. 477, 488, 578 A.2d 1085, cert. denied, 216 Conn. 817, 580 A.2d 63 (1990). This constitutional mandate is codified in
In the present case, an experienced criminal court judge carefully canvassed the defendant. The canvass disclosed that the defendant understood the charges against him and his maximum prison sentence exposure and that he was capable of accepting or rejecting a proposed plea bargain. The court also noted that the defendant had no difficulty forming sentences and he behaved rationally during the canvass. “It is the job of the trial judge to examine the facts before him and to determine the need for a hearing. He is in the best position to weigh the evidence and to evaluate the credibility of the defendant.” State v. Janice, 20 Conn. App. 212, 214, 563 A.2d 553 (1989). No abuse of discretion is present on the record in this case. The trial court properly denied the defendant’s motion for a competency examination.
Ill
Blood Tests Results
The defendant was taken by ambulance to Johnson Memorial Hospital in Stafford Springs where he came under the care of John Módica, the emergency room physician on duty. Módica diagnosed the defendant as suffering from facial lacerations, a contusion to his left chest wall and an irregular heart beat. In accordance with hospital policy in trauma cases, Módica ordered blood drawn and analyzed in the hospital laboratory. The analysis showed a serum blood alcohol concentration of 0.179 which translated into a whole blood alcohol concentration of 0.158 percent.
Sometime after the blood test, which was administered for medical diagnostic purposes, Trooper Tony Dostanko of the state police asked the defendant to sub*563mit to a blood test pursuant to
A
The defendant argues that the hospital blood test should not have been admitted for two reasons. First, *564he contends that the test did not comply with
B
Second, the defendant argues that the police officer subsection and hospital subsection violate his constitutional right to equal protection of the laws.15 Because this claim was not raised at trial, the defendant seeks review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In order to prevail under Golding, the defendant must show that (1) the record is adequate to review the alleged claim of error, (2) the claim is of constitutional magnitude alleging the violation of a fundamental right, (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial, and (4) if subject to harmless error analysis, the state has failed to demonstrate the harmlessness of the alleged constitutional violation beyond *566a reasonable doubt. State v. Golding, supra, 239-40. “In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant to the particular circumstances.” Id., 240. In the present case, the defendant’s claim fails because he did not satisfy the third prong of Golding by showing a violation of his right to equal protection of the laws.
The defendant contends that
Moreover, to “implicate the equal protection clauses under the state18 and federal19 constitutions it is necessary that the statute, or action, treat differently persons standing in the same relation to it.” State v. Johnson, 26 Conn. App. 553, 558, 603 A.2d 406, cert. denied, 222 Conn. 905, 606 A.2d 1350 (1993). Persons in custody who are requested by a police officer to take a blood test for the purposes of establishing legal liability are not similarly situated to patients from whom blood is drawn for diagnostic purposes in a hospital. As such, the protections afforded persons in the two circumstances are necessarily different. Accordingly, we hold that the trial court properly admitted the hospital blood test results into evidence.
IV
Admission of Statements
The defendant next claims that the trial court improperly admitted testimony of Dostanko and Módica concerning the defendant’s admissions to them that he was the operator of the car. The testimony of Dostanko and *568Módica was significant because it was unclear from the accident scene whether it was the defendant or Hinds who had been operating the car. The car had gone out of control and skidded across the highway, crashing three times into metal guardrails before apparently rolling over and finally coming to rest on a grassy embankment off the road. When Dostanko arrived at the scene, the defendant and Hinds were intertwined in the front seat and Dostanko could not tell which of them had been operating the car.
After the defendant and Hinds were taken to the hospital for treatment, Dostanko spoke to them separately in an attempt to find out who had been driving. The defendant was asked first and denied being the driver. Dostanko then asked Hinds and he responded that the defendant was driving. Dostanko went back to the defendant and informed him of Hinds’ response. The defendant replied, “All right, I was [expletive deleted] driving.” Later, the defendant also told Mód-ica that he was the driver. The statements were admitted at trial through the testimony of Dostanko and Módica.
A
The defendant first argues that his statements were improperly admitted because they were the product of police interrogation and he was not advised of his Miranda20 rights. We do not agree. Miranda requirements are not necessary unless the defendant (1) is in the custody of law enforcement officials and (2) is subjected to interrogation. State v. Copeland, 205 Conn. 201, 530 A.2d 603 (1987). In the present case, the defendant was not in custody when the statements were made.
*569At the accident scene, the defendant was obstreperous, combative and appeared intoxicated. The defendant exhibited obvious injuries and was classified as a trauma patient by the emergency medical technicians. As he was being extricated from the car, the defendant argued with the emergency workers and tried to remove the neck brace and restraining belt that were attached to the body board used to remove him from the car. He continued to be combative and an emergency medical technician requested help from Dostanko, who shouted at the defendant to let the medical technicians look at him and do their job. The defendant continued to resist treatment aggressively in the ambulance and at the hospital.
The defendant contends that Dostanko’s order to the defendant as he was brought to the ambulance constituted placing him in custody. We do not agree. He was not physically restrained by Dostanko at the time nor did Dostanko or any other officer remain with him so as to create the appearance that he was not free to leave. After the defendant was put into the ambulance, Dostanko drove to the hospital to continue his investigation.
At the hospital, Dostanko was in the defendant’s presence only sporadically and testified that he did not prevent the defendant from leaving or from doing anything else. The defendant, however, claims that the hospital personnel would not let him leave because he needed treatment and that this is the functional equivalent of police custody. The defendant cites no authority, nor are we aware of any, for the proposition that hospital emergency room personnel’s refusal to allow a patient to leave because he needs medical treatment constitutes police custody. In United States v. Martin, 781 F.2d 671, 673 (9th Cir. 1985), the court held that Miranda warnings were not required where police officers went to the hospital to question the defendant *570when the officers did nothing to bring about or to extend his hospitalization. Similarly, in the present case, Dostanko did not bring about or extend the defendant’s hospitalization against his will and was not involved in his medical treatment.
The trial court properly ruled that Miranda warnings were not required because the defendant was not in custody. In view of this conclusion, it is not necessary for us to consider the question of whether the defendant was subjected to interrogation.
B
The defendant’s second objection to the admissibility of his statements that he was the operator is that there was insufficient corroborative evidence to support their admission under the corpus delicti rule. We are not persuaded.
“The corpus delicti rule is fundamental jurisprudence to the effect that a person accused of a crime cannot be convicted solely on his own naked confession unsupported by corroborative evidence. . . . The purpose of the corpus delicti rule is to prevent convictions for nonexistent crimes based on untrue confessions. . . . Accordingly, before the state may introduce a defendant’s confession into evidence, the state must introduce corroborative evidence, direct or circumstantial, that taken together with the confession, establishes the corpus delicti.” (Citations omitted.) State v. Kari, 26 Conn. App. 286, 289, 600 A.2d 1374 (1991), appeal dismissed, 222 Conn. 539, 608 A.2d 92 (1992).
In Connecticut, the corpus delicti rule has two distinct formulations. First, where the crime charged encompasses a specific kind of loss or injury, the state may make use of a defendant’s admission at trial only if it proves, with sufficient corroborating evidence, the existence of that specific injury or loss. State v. *571Tillman, 152 Conn. 15, 20, 202 A.2d 494 (1964). The state does not have to prove the criminality of the underlying loss or injury as an element of the corpus delicti under this formulation. Id. Second, where the crime charged, however, prohibits certain conduct but does not require a specific harm, the state need introduce only substantial independent evidence that would tend to establish the trustworthiness of the defendant’s confession. State v. Harris, 215 Conn. 189, 194-95, 575 A.2d 223 (1990).
In the present case, each of the two formulations is implicated. The defendant’s conviction of assault in the second degree with a motor vehicle in violation of
The defendant’s conviction of operating a motor vehicle under the influence of liquor in violation of
The state satisfied that burden. The essential facts admitted by the defendant regarding his operating the *572vehicle were sufficiently substantiated by the additional evidence that the defendant owned the motor vehicle in question and had driven the car earlier in the evening. Moreover, the officers arriving at the accident scene testified that Hinds’ feet were on the passenger’s side when they arrived. Finally, the examining physician at the hospital testified that the tenderness in the defendant’s chest was consistent with an impact against the steering wheel. In light of the fact that the corroborating evidence need only fortify the “truth of the confession without independently establishing the crime charged,” it is evident that the state met its burden. Id., 194; see also State v. Comollo, 21 Conn. App. 210, 572 A.2d 1037, cert. denied, 215 Conn. 811, 576 A.2d 542 (1990).
Accordingly, we hold that the trial court properly admitted the defendant’s admission into evidence.
V
Search Warrant Hearsay
The defendant next claims that the trial court improperly admitted the affidavits supporting the search warrant into evidence. The hospital blood test provisions of
Furthermore, because this is not a constitutional issue, but solely a claim of evidentiary error, the defendant bears the burden of establishing that it was harmful; State v. Williams, 30 Conn. App. 654, 656, 621 A.2d 1365 (1993); State v. Nelson, 17 Conn. App. 556, 568, 555 A.2d 426 (1989); and that it is more probable than not that the claimed error affected the verdict. State v. Robinson, 213 Conn. 243, 259, 567 A.2d 1173 (1989). Here, other evidence that the defendant was the operator had already come into the case. “It is well established that a judgment need not be reversed merely *574because inadmissible evidence to the same effect has also been placed before the jury.” State v. Williams, supra. In the present case, therefore, the defendant cannot establish that he was harmed by the trial court’s ruling.
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
The passenger is confined to a wheelchair and has no control of bodily functions below his waist.
In nonjury trials, jeopardy attaches when the first witness is sworn. Serfass v. United States, 420 U.S. 377, 388, 95 S. Ct. 1055, 43 L. Ed. 2d 265 (1974).
But see State v. Roy, 182 Conn. 382, 438 A.2d 128 (1980), in which Connecticut disallowed a double jeopardy claim on the ground of manifest necessity after a jury had been sworn but no evidence taken.
“(b) presumption of competency. A defendant is presumed to be competent. The burden of proving that the defendant is not competent by clear and convincing evidence and the burden of going forward with the evidence are on the party raising the issue. The burden of going forward with the evidence shall be on the state if the court raises the issue. The court may call its own witnesses and conduct its own inquiry.”
In making its ruling, the trial court stated: “I’m not satisfied that there has been an adequate showing that a [General Statutes]
Sections 14-227a-l through 14-227a-9 of the Regulations of Connecticut State Agencies regulate the chemical analysis of blood for alcohol “when the results thereof may be offered as evidence in a court of law with respect to persons alleged or suspected to have been under the influence of intoxicating liquor while operating a motor vehicle.” Regs., Conn. State Agencies § 14-227a-2.
See footnote 10, supra.
The defendant raises this equal protection claim under article first, § 20, of the constitution of Connecticut and the fourteenth amendment of the United States constitution. Because the equal protection provisions of the federal and state constitutions have the same meaning and limitations in the context of this claim, we will discuss the defendant’s claim under both provisions simultaneously. See Franklin v. Berger, 211 Conn. 591, 594 n.5, 560 A.2d 444 (1989).
See footnote 10, supra.
See footnote 14, supra.
The constitution of Connecticut, article first, § 20, as amended, provides: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.”
The constitution of the United States, amendment fourteen, § 1, provides: “All persons bom or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Miranda v. Arizona, 348 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
At the time the warrant was admitted, the trial court instructed the jury as follows: “[Ljadies and gentlemen, this exhibit is being admitted pursuant to a statute that requires that when a chemical analysis of blood sample is taken of an injured operator of a motor vehicle at the hospital in connection with the treatment of that person for injuries sustained in the accident, that certain procedures be followed, one of which is that the result of any such blood sample be seized after a search warrant has been signed by a judge and, specifically, a police officer has demonstrated to the satisfaction of a judge of the Superior Court that such officer has reason to believe that such person was operating a motor vehicle while under the influence of intoxicating liquor. It is introduced to show compliance with that statute. It is not being introduced for the truth of the statements contained therein. It is limited only to show compliance with the statute and not for the truth contained in any of the statements that are contained therein. . . . This goes to the first count of operating under the influence only.”
The trial court charged the jury as follows: “Now with respect to the limiting instruction that I referred to earlier, you will recall that exhibit fourteen which you will have with you in your deliberation room is the search warrant application. That search warrant application, exhibit fourteen, is not proof of guilt. It was introduced solely to satisfy our laws concerning the compliance with the statutes before a hospital blood test can be introduced into evidence.”